Friends of Animals v. Jewell

• Decision Date: 03 June 2016
• Docket Number: No. 15-5070,15-5070
• Citation: 824 F.3d 1033
• Parties: Friends of Animals, Appellant v. Sally Jewell, In her official capacity as Secretary of Interior, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

824 F.3d 1033

Friends of Animals, Appellant

v.Sally Jewell, In her official capacity as Secretary of Interior, et al., Appellees.

No. 15-5070

United States Court of Appeals, District of Columbia Circuit.

Argued February 22, 2016

Decided June 3, 2016

Michael Ray Harris argued the cause for appellant. With him on the briefs was Jennifer E. Barnes.

Robert H. Oakley, Attorney, U.S. Department of Justice, argued the cause for federal appellees. With him on the brief were John C. Cruden, Assistant Attorney General, and Andrew C. Mergen, Washington, D.C., and Matthew Littleton, Attorneys. Nina C. Robertson, Attorney, entered an appearance.

Anna M. Seidman, Vienna, VA, Douglas S. Burdin, and Jeremy E. Clare were on the brief for defendant-intervenor-appellee Safari Club International.

Before: Kavanaugh, Circuit Judge, and Edwards and Sentelle, Senior Circuit Judges.

Concurring opinion filed by Senior Circuit Judge Sentelle

.

Edwards

, Senior Circuit Judge:

Section 9 of the Endangered Species Act of 1973 (“Act” or “ESA”), 16 U.S.C. § 1531 et seq .,

makes it unlawful “for any person subject to the jurisdiction of the United States to,” inter alia , “take” any endangered species within the United States or “possess, sell, deliver, carry, transport, or ship, by any means whatsoever” any endangered species “taken” in violation of the Act. 16 U.S.C. § 1538(a)(1)(B), (D). Under the Act, “take” means “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Id. § 1532(19). Section 10 of the Act authorizes the Secretary of the Interior, who has delegated his authority to the Fish and Wildlife Service (“FWS” or “Service”), to, inter alia , “permit ... any act otherwise prohibited by [Section 9] for scientific purposes or to enhance the propagation or survival of the affected species.” Id. § 1539(a)(1)(A). Section 10 also requires the Secretary to publish notices in the Federal Register of all permit applications and make available to the public information received as part of any such applications. Id. § 1539(c).

In 2005, the Fish and Wildlife Service listed three antelope species—the scimitar-horned oryx (Oryx dammah ), addax (Addax nasomaculatus ), and dama gazelle (Gazella dama )—as endangered. See Final Rule to List the Scimitar–Horned Oryx, Addax, and Dama Gazelle as Endangered (“Listing Rule”), 70 Fed. Reg. 52,319, 52,319 (Sept. 2, 2005)

. On the same day that the Service designated the antelope species as endangered, it issued a blanket exemption for qualifying domestic entities and individuals—including some sport hunting programs—that breed the antelope species in captivity. See Exclusion of U.S. Captive–Bred Scimitar–Horned Oryx, Addax, and Dama Gazelle from Certain Prohibitions (“Captive-Bred Exemption”), 70 Fed. Reg. 52,310, 52,311, 52,317 (Sept. 2, 2005)

. Under the Captive-Bred Exemption, the FWS allowed qualified owners of domestic, captive-bred antelope to engage in activities otherwise prohibited by Section 9 of the ESA without applying for individual permits on a case-by-case basis. Id. at 52,317.

In 2009, the District Court, in an action preceding this case, determined that the Captive-Bred Exemption violated Section 10(c) of the Act. Friends of Animals v. Salazar (Antelope I ), 626 F.Supp.2d 102, 115 (D.D.C. 2009)

. The court found “that the text, context, purpose and legislative history of the statute make clear that Congress intended permits for the enhancement of propagation or survival of an endangered species to be issued on a case-by-case basis following an application and public consideration of that application,” not pursuant to blanket exemptions. Id. Following this decision, FWS revoked the Captive–Bred Exemption. See Removal of the Regulation That Excludes U.S. Captive–Bred Scimitar–Horned Oryx, Addax, and Dama Gazelle from Certain Prohibitions (“Removal Rule”), 77 Fed. Reg. 431, 431 (Jan. 5, 2012).

On January 17, 2014, President Obama signed into law the Consolidated Appropriations Act, 2014 (“Appropriations Act”). Division G, Title I, Section 127 of the Appropriations Act (“Section 127”) provides:

Before the end of the 60-day period beginning on the date of enactment of this Act, the Secretary of the Interior shall reissue the final rule published on September 2, 2005 (70 Fed. Reg. 52310

et seq.) without regard to any other provision of statute or regulation that applies to issuance of such rule.

Pub. L. No. 113–76

, div. G, tit. I, § 127, 128 Stat. 5, 315-16 (2014). On March 19, 2014, the Service complied with Section 127 and reinstated the Captive–Bred Exemption. See Reinstatement of the Regulation That Excludes U.S. Captive–Bred Scimitar–Horned Oryx, Addax, and Dama Gazelle from Certain Prohibitions (“Reinstatement Rule”), 79 Fed. Reg. 15,250, 15,250 (Mar. 19, 2014) (codified at 50 C.F.R. § 17.21(h) ).

On March 5, 2014, Friends of Animals, an animal advocacy organization, brought suit against FWS and the Department of the Interior (“Federal Appellees”), alleging that the Reinstatement Rule violates the Act and the Administrative Procedure Act (“APA”), 5 U.S.C. § 706

, and that Section 127 violates the United States Constitution. See

Friends of Animals v. Jewell , 82 F.Supp.3d 265, 267 (D.D.C. 2015). Safari Club International intervened as a defendant in the suit (together with the Federal Appellees, “Appellees”). See

id. at 270.

On cross-motions for summary judgment, the District Court granted Appellees' motions for summary judgment and denied Friends of Animals' motion for summary judgment. Id. at 279

. The District Court found that the Reinstatement Rule was not arbitrary or capricious under the APA, id. at 278–79 ; that Friends of Animals did not have Article III standing to challenge the constitutionality of Section 127, id. at 278 ; and that even if Friends of Animals had standing, Section 127 is not unconstitutional, id. at 278 n. 9. Friends of Animals now appeals.

Under FEC v. Akins , 524 U.S. 11, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998)

, Friends of Animals has informational standing to pursue its claims, so there is no jurisdictional impediment to this lawsuit. We reject Friends of Animals' claims on the merits, however. Congress acted within constitutional bounds when it passed Section 127. Therefore, there can be no doubt that the Service was fully authorized to reinstate the Captive-Bred Exemption.

I. Background

A. Statutory Background

The stated purpose of the Endangered Species Act is “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions set forth in subsection (a) of this section.” 16 U.S.C. § 1531(b)

. Section 4 of the Act directs the Secretary of the Interior, who has delegated his authority to FWS, to list species that he determines are “threatened” or “endangered” under specified criteria. Id. § 1533. “When a species ... is listed as either ‘threatened’ or ‘endangered’ under the Act, it is then subject to a host of protective measures designed to conserve the species.” In re Polar Bear Endangered Species Act Listing & Section 4(d) Rule Litig.—MDL No. 1993 , 709 F.3d 1, 2 (D.C. Cir. 2013).

As noted above, Section 9 of the Act makes it unlawful “for any person subject to the jurisdiction of the United States to,” inter alia , “take” any endangered species within the United States or “possess, sell, deliver, carry, transport, or ship, by any means whatsoever” any endangered species “taken” in violation of the Act. 16 U.S.C. § 1538(a)(1)(B), (D)

. The Act defines “take” to mean “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Id. § 1532(19). While the Act contains specific guidelines when it comes to determining whether a species should be listed as endangered, FWS has flexibility under the Act in assessing how to conserve a species after it has been listed as endangered. Most relevant to this case, Section 10 of the Act authorizes the Service to, inter alia , “permit ... any act otherwise prohibited by [Section 9] for scientific purposes or to enhance the propagation or survival of the affected species.” Id. § 1539(a)(1)(A).

Section 10(c) of the Act specifies that

[t]he Secretary shall publish notice in the Federal Register of each application for an exemption or permit which is made under this section. Each notice shall invite the submission from interested parties, within thirty days after the date of the notice, of written data, views, or arguments with respect to the application; except that such thirty-day period may be waived by the Secretary in an emergency situation where the health or life of an endangered animal is threatened and no reasonable alternative is available to the applicant, but notice of any such waiver shall be published by the Secretary in the Federal Register within ten days following the issuance of the exemption or permit. Information received by the Secretary as a part of any application shall be available to the public as a matter of public record at every stage of the proceeding.

Id. § 1539(c). Section 10(d) further provides that the Secretary may only grant a Section 10 permit if he finds and publishes in the Federal Register that the permit was applied for in good faith, will not operate to the disadvantage of the endangered species, and will be consistent with the purposes and policy of the Act. Id. § 1539(d).

B. Factual and Procedural Background

This case concerns three antelope species—the scimitar-horned oryx (Oryx dam mah ), addax (Addax nasomaculatus ), and dama gazelle (Gazella dama )—whose herds have dwindled, if not disappeared, from their native environments in northern Africa. As of June 2013, “[t]he oryx is believed to be extirpated in the wild, the addax numbers fewer than...